Martha Feigenbaum, Family & Divorce Law Attorney, Austin, Texas

There are 3 kinds of property:

Separate Property is property owned by the spouse prior to the marriage, or received during the marriage by gift or inheritance. The old rule was that the Court could not divide your separate property. However, the Court are gradually allowing divestment of separate property based on legal theories such as reimbursement, and equitable liens. Since all property at the time of divorce is presumed to be community, the party claiming property to be separate must prove by clear and convincing evidence his separate property. To prove this separate property the spouse must trace the separate property to ownership prior to the marriage or by gift or inheritance.
Community Property is all other property acquired by either spouse during the marriage, except Separate Property. There is a presumption that all property is considered community unless proven otherwise.
Mixed Property is composed of both separate and community property. An example is where one spouse uses his separate money as a down payment on a home and then the parties’ sign a mortgage and make payments during the marriage.

There is no rule of law stating that community property is split 50/50. Most judges start a division of community at the 50/50 mark with adjustments based on the earning abilities of the parties, separate assets, education, health, cause in the break up of the marriage, spouse abuse and child abuse.

The only standard guiding the judge is what is a right and just division.